WASHINGTON — The American Civil Liberties Union on Thursday joined a growing chorus in the human rights community calling for a special prosecutor to investigate whether former president George W. Bush violated federal statutes prohibiting torture.

In his new memoir and ensuing book tour, Bush has repeatedly admitted that he directly authorized the waterboarding of three terror suspects. Use of the waterboard, which creates the sensation of drowning, has been an iconic and almost universally condemned form of torture since the time of the Spanish Inquisition.

Except for a brief period during which a handful of Bush administration lawyers insisted that the exigencies of interrogating terror suspects justified its use, waterboarding has always been considered illegal by the Justice Department. It is also a clear violation of international torture conventions.

The ACLU is urging Attorney General Eric Holder to ask Assistant U.S. Attorney John Durham to investigate Bush. For nearly three years now, Durham has been acting as a special prosecutor investigating a variety of torture-related matters involving government officials considerably lower on the food chain. Just this Tuesday, it was widely reported that Durham had cleared the CIA’s former top clandestine officer and others in the destruction of agency videotapes showing waterboarding of terror suspects — but that he would continue pursuing other aspects of his investigation.

“The ACLU acknowledges the significance of this request, but it bears emphasis that the former President’s acknowledgment that he authorized torture is absolutely without parallel in American history,” the group wrote in its letter to Holder.

“The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.”

In an interview with the Times of London published this week, Bush used that language again, this time with feeling. James Harding described asking Bush if he authorized the use of the waterboard on Mohammed.

“Damn right!” he barks. “We capture the guy, the chief operating officer of al-Qaeda, who kills 3,000 people. We felt he had the information about another attack. He says: ‘I’ll talk to you when I get my lawyer.’ I say: ‘What options are available and legal?’ “

We believe America’s going to be attacked again. There’s all kinds of intelligence comin’ in. And– and– one of the high value al Qaeda operatives was Khalid Sheik Mohammed, the chief operating officer of al Qaeda… ordered the attack on 9/11. And they say, “He’s got information.” I said, “Find out what he knows.” And so I said to our team, “Are the techniques legal?” He says, “Yes, they are.” And I said, “Use ’em.”

LAUER: Why is waterboarding legal, in your opinion?

BUSH: Because the lawyer said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.

The so-called “Torture Memos” were drafted by officials in the Justice Department’s Office of Legal Counsel under the strict supervision of the vice president’s office — and were withdrawn within a matter of months when other Bush lawyers found them utterly unjustifiable.

For the record, the first time Bush admitted his direct role in waterboarding was actually back in early June, when he casually acknowledged what he’d done and said he’d do it again.

“Yeah, we waterboarded Khalid Sheikh Mohammed,” Bush told the Economic Club of Grand Rapids, Mich., in a paid appearance. “I’d do it again to save lives.”

I wrote at the time about the outraged response from some former military and intelligence officials.

[T]he United States has always considered waterboarding torture except during the Bush administration. We prosecuted Japanese generals for waterboarding people. We prosecuted American soldiers for waterboarding people and pressed that cage. The current attorney general Mr. Holder has said that waterboarding is torture. We`ve always regarded it as torture and under our statute, under our international law, we are bound to prosecute. The president has a duty under the constitution to take care the laws of faith to be executed and now that former President Bush said that he personally ordered waterboarding, there must be at least an investigation and a special prosecutor.

Nadler called Bush’s admission a “smoking gun.” But, he said, he was dubious that Holder would act.

“Judging by the record of this attorney general, he will not pay attention, he will not respond,” Nadler said. The reason: “[T]his administration, unfortunately, has taken the opinion — has taken the attitude that they`re not going to look at any criminal actions within the prior administration. They say, let`s look forward, not backward, by that standard no one would ever prosecute any crime and this is a violation of our obligations under the torture treaty, under the torture convention, that Ronald Reagan signed.”

Also on Tuesday, a Republican suggested for the first time that a torture investigation in Congress might not be out of the question. As Think Progress reported, Rep. Jason Chaffetz (R-UT) told MSNBC’s Dylan Ratigan that he’s “not afraid of going after the Bush administration.”

“Under international law, anyone involved in torture must be brought to justice, and that does not exclude former President George W. Bush. If his admission is substantiated, the USA has the obligation to prosecute him,” said senior director Claudio Cordone. “In the absence of a US investigation, other states must step in and carry out such an investigation themselves.”

Indeed, British human rights lawyer Geoffrey Robertson was quoted in the British press this week as saying Bush’s admission could leave him open to arrest and possible prosecution if he visits countries that have ratified the UN torture convention.

“George W Bush has confessed to ordering waterboarding, which in the view of almost all experts clearly passes the severe pain threshold in the definition of torture in international law,” Robertson said. “[H]e is an ex-head of state so he is not entitled to immunity from arrest and trial.”

Robertson added: “So his retirement travel plans may well be circumscribed, although he never ventured abroad before he became President, and no doubt made the statements in his book having been advised of this potential consequence.”

Here’s the full text of the ACLU letter:

Dear Attorney General Holder:

The American Civil Liberties Union respectfully urges you to refer to Assistant U.S. Attorney John Durham the question of whether former president George W. Bush’s conduct related to the interrogation of detainees by the United States violated the anti-torture statute. See 18 U.S.C. § 2340A.

In his recently published memoirs, President Bush discusses his authorization of the waterboarding of Khalid Sheik Mohammed and Abu Zubaydah. He states, for example, that he “approved the use of the [enhanced] interrogation techniques,” including waterboarding, on Abu Zubaydah, and that he responded to a request to waterboard Khalid Sheik Mohammed by stating: “Damn right.” George W. Bush, Decision Points 169-70 (2010).

The Department of Justice has made clear that waterboarding is torture and, as such, a crime under the federal anti-torture statute. 18 U.S.C. § 2340A(c). The United States has historically prosecuted waterboarding as a crime. In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham’s current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush.
The ACLU acknowledges the significance of this request, but it bears emphasis that the former President’s acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.

Failure to fully investigate the role of the former President in the use of torture would also severely compromise our ability to advocate for human rights in other countries. The United States has been a champion of that cause for over half a century. Recently, while in Indonesia, President Obama urged that country to acknowledge the human rights abuses of the Suharto regime. He stated unequivocally that “[w]e can’t go forward without looking backwards.” Without suggesting that our own experience is equivalent, it is clear that the United States’s authority to push for such accountability in other countries, and the willingness of those countries to follow our advice, would quickly unravel if we failed even to investigate abuses authorized by our own officials.

The ACLU understands the gravity of this matter and appreciates the difficulty of the Department of Justice’s task. A nation committed to the rule of law, however, cannot simply ignore evidence that its most senior leaders authorized torture.

Thank you for your attention to this matter. For your convenience, I am attaching the ACLU’s letter of March 17, 2009, in which we asked you to appoint an independent prosecutor to investigate crimes relating to the abuse of detainees.

Sincerely,

Anthony D. Romero

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